[EXHIBIT 10.1.25]
TERM SHEET
This Term Sheet ("Term Sheet") sets forth the agreement entered
into this 13 day of January , 2005 by and between Film and Music
Entertainment, Inc. ("FAME"), a Nevada corporation located at 0000
Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, on
the one hand, and Eris Productions, a Florida Corporation, located
at 0000 Xxxxxx Xxx, Xxxxxxxxxx, Xxxxxxx 00000 and PTP Productions,
LLC, a Florida Corporation, located at 0000 Xxxxxxxx Xxxxx #000,
Xxxxxxx, XX 00000 (collectively "Eris"), on the other hand, with
respect to the final version, marketing and distribution of the
documentary motion picture currently titled "Waking Up Dead"
("Picture") on the terms set forth herein:
1. Eris hereby warrants and represents that it has
full right title and interest in and to the Picture and
the capability to execute this Term Sheet and to grant
the rights contained herein.
2. Eris shall provide FAME with a clear chain of
title, free from any encumbrances, including all
releases relating to all musical compositions used in
the Picture. Any and all participation payments,
royalties, synchronization rights, payments and/or any
other required payments to third parties shall be the
sole responsibility of Eris. Should FAME be required to
make any such payments on behalf of Eris, such payments
shall be deducted from distributions due to Eris from
FAME.
3. FAME and/or assigns shall have world-wide
distribution and/or sales rights for the Picture and all
derivative works for the period of fifteen (15) years.
4. FAME agrees to use its best efforts to seek
potential distributors for the Picture and to maximize
revenues from the Picture. Once FAME has identified a
prospective distributor, FAME will inform Eris of the
distributor's identity and degree of interest. Eris and
FAME will work together in all aspects of pursuing a
distribution agreement with all distributors. However,
Eris will not have the authority to finalize or enter
into any agreement with the distributor.
5. FAME and/or assigns will be accorded a single card
presentation credit on a most favored nations basis to
read "FAME presents", and Xxxx Xxxx will be accorded
either a co-producer or executive producer credit in
first position. Likewise, Eris shall receive either a co-
producer or executive producer credit in second
position.
6. All net profits (as defined below) realized from
the marketing or distribution or any other exploitation
of the Picture shall be apportioned between the parties
as follows:
FAME ...........20%
Eris ...........80%
For purposes of this Paragraph 6, "gross receipts" shall
be defined to mean all revenue received by FAME or
its subsidiaries or affiliates acting as sub-
distributors, sub-licensees or agents (without any
deductions), generated by any marketing, sale,
licensing, distribution or any other exploitation of
the Picture, including the gross amounts received by
any of FAME'S subsidiaries or affiliates acting as
sub-distributors, sub-licensees or agents.
For purposes of this Paragraph 6, "net profits" shall mean
the gross receipts received by FAME or its
subsidiaries or affiliates acting as sub-
distributors, sub-licensees or agents on account of
any marketing, sale, licensing, distribution or any
other exploitation of the Picture in any format, in
any language and/or any territory in the world, LESS
the following, in order of priority:
a) Reimbursement of 100% all distribution and sales costs
and expenses, including, without limitation, direct
marketing expenses; costs of conversion to 16mm or
35mm prints, should Eris and FAME jointly determine
that such conversion will increase the income
potential on the Picture; all print and advertising
expenses; costs incurred in connection with
promotional materials; sales and withholding taxes,
shipping of promotional material; publicity material,
bank transfer charges, dubbing and production of
foreign language tracks; and advertising expenses
that have been advanced or incurred by FAME in
connection with the distribution of the Picture
hereunder.
b) Reimbursement of 100% all distribution and sales costs
and expenses, including, without limitation, direct
marketing expenses; costs of conversion to 16mm or
35mm prints, should Eris and FAME jointly determine
that such conversion will increase the income
potential on the Picture; all print and advertising
expenses; costs incurred in connection with
promotional materials; sales and withholding taxes,
shipping of promotional material; publicity material,
bank transfer charges, dubbing and production of
foreign language tracks; and advertising expenses
that have been advanced or incurred by Eris in
connection with the distribution of the Picture
hereunder.
All of FAME'S expenses in excess of $1,000.00 must have
prior approval from Eris in order to be considered
recoupable. FAME shall provide written documentation
or receipt to Eris any and all expenses less than
$1,000.00 within five (5) business days of said
expenditures. Eris' approval of FAME'S expenses shall
not unreasonably withheld.
7. FAME shall have Eighteen (18) months from the final
signature date below in which to secure reasonable
sales and/or distribution of the Picture. Should
FAME fail to secure such sales and/or distribution
within this term, Eris shall have the right, but
not the obligation, to immediately cancel this
Term Sheet with thirty (30) days prior written
notice. Additionally, if at any time after nine
(9) months from the final signature date below,
Eris believes that FAME is not using its best
efforts with regard to securing reasonable sales
and/or distribution of the Picture, Eris shall
have the right to notify FAME, in writing, of
FAME'S deficiency of perfoffi1ance under this Term
Sheet and provide FAME with a reasonable course of
action to cure such deficiency. FAME shall have
thirty (30) days to cure any such deficiency.
Should said deficiency not be addressed and
rectified in the allotted thirty (30) days, Eris
shall have the right to cancel said Term Sheet
with written notice to FAME. Should cancellation
of the Term Sheet occur, either after nine (9)
months or after eighteen (18) months, as provided
for above, with the required written notice from
Eris, FAME shall have the right on a first
priority basis, which survives cancellation of the
Term Sheet, to recoup all prior approved expenses,
as described in Paragraph 6(a) above, from any
future net profits, as defined in Paragraph 6
above, derived from the Picture. If Eris does not
reimburse FAME on a first priority basis from net
profits for FAME'S prior approved expenses, FAME'S
sole remedy for recoupment of said prior approved
expenses shall be limited to a claim for breach of
contract. Upon any cancellation of this Term
Sheet, Eris shall retain all rights in and to the
Picture and any other creation based on or arising
from the Picture created by Eris, and any material
developed as of the date of termination based
thereon, shall revert to or be delivered to Eris.
Not withstanding the foregoing, Eris agrees that
this paragraph shall be deemed waived upon the
earliest attainment by FAME of any of the
following events: (a) theatrical release in at
least three (3) markets, two of which must be
major markets, defined as Los Angeles, New York,
Chicago, Philadelphia, San Francisco, Washington
D.C., Atlanta, Dallas, Boston, or Miami, in not
less than ten (10) theaters; (b) sale of the
Picture in five (5) foreign territories; or (c)
prize awarded in at least three (3) festivals.
8. Before entering into any distribution or
sales agreements and/or before making any third-
party commitment on any matter relating to the
Picture, FAME shall request approval and/or
consent of Eris. Said approval and/or consent
shall not be unreasonably withheld and shall be
granted in a reasonable time period.
9. FAME shall provide Eris with statements of
income within thirty (30) days of the end of a
statement period. Statement periods shall be
defined as monthly for theatrical income and
quarterly for all other ancillary income. FAME
shall provide a check to Eris for payment in full
of all sums then due and payable to Eris, less any
recoupments allowable under Paragraph 6(a) above,
within fifteen (15) days of the end of each
statement period. Theatrical income is defined as
any income derived from the marketing and/or
distribution of the Picture in theaters. Ancillary
income is defined as any other income received
by FAME that does not relate to the sale or
distribution of the Picture in theaters.
10. Eris shall have reasonable audit rights and
shall be allowed to inspect any and all of FAME'S
and/or its assigns, records relating to the
Picture. Eris can conduct said audit upon a minimum
of three (3) weeks prior written notice, at Eris'
sole expense and during FAME'S normal business
hours. Each annual statement from FAME maybe
audited once, and such audit must be conducted no
longer than twelve (12) months after the closing
date of the period to be audited.
11. Eris shall provide FAME, on a timely basis,
the delivery schedule, attached hereto and part of
the whole hereof as "Schedule A".
12. Eris understands and agrees that FAME is a
holding company and that FAME will be assigning its
rights to various subsidiaries. Eris shall be kept
advised of any and all assignments and hereby
agrees to such assignments.
13. FAME acknowledges that Eris is the sole
creator and author of the Picture and that Eris is
the exclusive owner of copyright in said work and
of all rights comprised in copyright. It is agreed
that Eris shall have the right to exercise all
rights of copyright owner with respect to original
story for the script of the Picture, including but
not limited to all exclusive rights specified in 17
U.S.C 106. FAME does not own nor is it entitled
to any rights or claims to any intellectual
property developed by or for Eris outside of the
relationship created between the parties.
14. All other terms, including any re-edit and/or
additional materials necessary to deliver the
Picture with a minimum of eighty-eight (88) minutes
of running time, shall be subject to good faith,
reasonable negotiations between the parties hereto.
Eris shall have reasonable final creative control
of the Picture, and approval shall not to be
unreasonably withheld.
15. Throughout the term of this Term Sheet and at
all times thereafter, Eris and FAME agree not to
disclose to others or to use any confidential or
proprietary information or property of the other
acquitted hereunder or in connection herewith,
except as authorized herein or in advance, in
writing, to the disclosing party , and both shall
keep and shall require their respective directors,
officers, employees and agents to keep confidential
such information, including, but not limited to,
all designs, sketches, drawings financial and
marketing information, customer lists and other non-
public business and financial information, or as
required by FAME as a public company or by a court
of law. The foregoing restrictions shall not apply
to confidential information which is or was
learned, acquired or developed independently by the
receiving party, or which is known publicly. The
provisions of this Paragraph 15 and each party's
obligations hereunder shall survive any
cancellation or expiration of this Term Sheet.
16. FAME shall indemnify and hold harmless Eris
from and against any loss, cost, claim, damages or
other liability to or from any third party arising
out of FAME'S commitments, obligations,
warrantees and representations made under this Term
Sheet. Likewise, Eris shall indemnify and hold
harmless FAME from and against any loss, cost,
claim, damages or other liability to or from any
third party arising out of Eris' commitments,
obligations, warrantees and representations made
under this Term Sheet.
17. All requests, reports, approvals and notices
required or permitted to be given under this Term
Sheet shall be in writing and shall, unless
specifically provided otherwise in this Term Sheet,
be deemed to have been given if personally
delivered, faxed (with receipt confirmed) or mailed
(by registered or certified air mail, return
receipt requested), postage prepaid, to the party
concerned, at its address or addresses as set forth
above or as designated from time to time by notice
in writing, and the date of mailing shall be
considered the notification date.
18. The parties acknowledge that they have each
been advised by, or had the opportunity to be
advised by, legal counsel during the course of
negotiation of this Term Sheet, and therefore this
Term Sheet shall be interpreted without regard to
any presumption or rule requiring construction
against the party causing this Term Sheet to be
drafted. Each party having had the opportunity to
seek and obtain legal advice with respect to its
respective rights and obligations under this Term
Sheet, and having done so, each party hereby sets
it hand below on the date first above specified,
with the intent to be bound hereby.
19. Other than claims arising under the copyright
laws of the United States, any disputes,
controversy or claim arising out of or relating to
this Term Sheet, or the breach thereof, which
cannot be resolved within a reasonable time through
discussions between the parties, shall be resolved
by means of arbitration to be conducted in Los
Angeles, California by a single arbitrator, who
shall be mutually agreed upon by the parties. If
the parties are unable to agree on the arbitrator,
the arbitrator shall be selected pursuant to the
rules and procedures specified by the American
Arbitration Association. The arbitration will
proceed in accordance with the rules specified by
the arbitrator, if the parties so agree, or if they
do not agree, the arbitration will proceed under
the rules of the American Arbitration Association (
or any successor organization thereto) in
accordance with its Commercial Arbitration Rules.
The decision of the arbitrators shall be final,
conclusive and binding upon the parties and, a
judgment upon the award may be obtained and entered
in any federal or state court of competent
jurisdiction. The costs and expenses of the
arbitration proceedings, exclusive of attorney's
fees, shall be shared equally between or
among the parties. In any dispute arising from or
to enforce the terms of this Term Sheet, the
prevailing party in such dispute shall be entitled
to recover that party's attorney's fees and costs
from the other party.
20. This Term Sheet supersedes any and all prior
agreements, oral or written, with respect to the
subject matter hereof. Time is of the essence.
Should any portion of this Term Sheet be found not
enforceable, such portion shall be deemed severed
with the balance of the Term Sheet remaining in
full force and effect. This Term Sheet may be
executed by any number of counterparts, each of
which shall be deemed to be an original and all of
which together shall be deemed to be one and the
same instrument. All changes to any portion of this
Term Sheet must be done in writing and must be
signed by both Eris and FAME. Failure of either
party to enforce at any time any term, provision or
condition of this Term Sheet, or to exercise any
right or option herein, shall in no way operate as
a waiver thereof, nor shall any single or partial
exercise preclude any other right or option herein,
in no way whatsoever shall a waiver of any term,
provision or condition of this Term Sheet be valid
unless in writing, signed by the waiving party ,
and only to the extent set forth in such writing.
This Term Sheet shall be deemed entered into and
wholly performed in Los Angeles, California and
shall be subject to the law and jurisdiction
thereof.
Our signatures below this ____ day of January, 2005 shall
indicate our acceptance of the foregoing:
ERIS FAME
___________________________ __________________________
By: Xxxxx Xxxxx By: Xxxx Xxxx
Its: President Its: President
PTP Productions, LLC
____________________________
By: Xxxxxxx Xxxxxx III
Its: Managing Member
"Schedule A"
Delivery Items*
1. Lab access letter
2. Answer Print or check print
3. IP
4. IN
5. Textless Main/End title IP
6. Script
7. Copy of Shooting Script (transcript of actual onscreen language)
8. Credit Block
9. Main Title Credits List
10. End Title Credits List
11. Music Elements (DAT copy of score and other tracks in the film)
12. Music Cue Sheet
13. Music Contract/license Agreements
14. Pub/Advert-color slides
15. Press Kits
16. Key, Art, Poster or any one sheets(if available)
17. Paid advert statements
18. Chain of the Title Statement
19. E & O Insurance
20. Copyright Report
21. Copyright Certificate
22. CCSL-Combined Continuity and Spotting List
23. Video Masters-Hi Def/DBC/D-1
24. Video Cassette viewing copy of NTSC (if available)
25. Trailer
* Whereas the picture is a documentary shot in multiple formats, the
above delivery items may be modified by FAME to accommodate the
nature of the project
